McCourt AD, Vernick JS, Betz ME, Brandspigel S, Runyan CW. Temporary Transfer of Firearms From the Home to Prevent SuicideLegal Obstacles and Recommendations. JAMA Intern Med. 2017;177(1):96-101. doi:10.1001/jamainternmed.2016.5704
The presence of firearms in the home increases the risk of suicide for residents. As a result, clinicians and professional organizations recommend counseling about temporary removal of firearms from the home of potentially suicidal individuals. In some states, however, firearm laws may affect the ability to easily transfer a gun temporarily to reduce suicide risk. In particular, universal background check (UBC) laws—which require a background check whenever a gun is transferred, even by non–gun dealers—may also apply to temporary transfers intended to reduce suicide risk. Clinicians have previously reported that confusion regarding state firearm laws and uncertainty over the legality of a temporary transfer have affected their ability to effectively counsel patients. We summarize the laws of all 50 states and specifically examine the relevant firearm laws of 3 representative states with UBCs and different approaches—Maryland, Colorado, and California. We identify both helpful and problematic aspects of state laws regarding temporary transfer of firearms. We provide recommendations for amending UBC laws to make it easier for clinicians and patients to temporarily transfer firearms.
In the United States, suicides account for 63% of firearm deaths, and self-inflicted firearm injury is responsible for half of all suicides.1 Firearm suicide affects nearly all age groups. In 2014, there were 929 suicides by firearm among persons aged 10 to 24 years, 9612 for those aged 25 to 54 years, and 9277 for those aged 55 years or older.1
We examine the background check laws of all 50 states for temporary transfer of firearms from the home to prevent suicide. We then provide more detail for 3 representative states with universal background check (UBC) laws and with different approaches—Maryland, Colorado, and California—to better understand the implications of these laws. Although data are lacking, some high-risk individuals may be dissuaded from temporarily transferring a firearm by the lack of a specific mechanism within state law. We suggest that state policies create exceptions for temporary firearm transfer and storage for individuals at elevated risk of death by suicide.
Access to guns, especially in the home, increases the risk of death by suicide across age groups,2,3 and adolescent firearm suicides most often involve a firearm belonging to the victim’s family.4 Studies have demonstrated that homes with firearms are much more likely to experience the suicide of a household member than are homes without guns, after controlling for other risk factors.5,6 In a study in California, the rate of suicide among those who purchased a firearm in the previous week was 57 times higher than the statewide rate of suicide in the general population.7 States with higher rates of household firearm ownership have higher rates of firearm-related and overall suicide.8 In addition, firearms are the most lethal means of intentional self-harm, with a case fatality rate of approximately 90%.9- 11
Reducing access to firearms and other lethal items is a recommended, evidence-based practice to prevent suicide.12- 16 In the case of a firearm owner at elevated risk of self-harm, the recommendation would be to temporarily store the gun away from home or store it locked in such a way that the at-risk person does not have access at least until the mental health crisis has resolved. This might involve storing the firearm with a friend, relative, licensed dealer, or law enforcement agency.
On the basis of findings from suicide prevention research, national organizations have urged clinicians to offer patients guidance and firearm safety education, especially in the context of suicide risk and safety planning.17- 19 For example, the American Academy of Pediatrics recommends that pediatricians incorporate questions and counseling about the presence and availability of firearms in patient homes.20 The American College of Physicians recommends that “[p]hysicians should counsel patients about the risk of having firearms in the home.”21(p859) Empirical evaluations of this type of anticipatory guidance have shown that counseling is acceptable to many patients, can be feasibly implemented, and may be effective.22- 25
However, the willingness of physicians and other mental health professionals to discuss firearm transfer and storage is limited by their beliefs and concerns over potential illegality or over offending patients.20,23,26 Similarly, patients and potential resources for gun storage (eg, law enforcement, retailers, or shooting ranges) may not follow clinical advice owing to real or perceived legal barriers to transferring guns for storage outside the home. More examination is needed of the interplay between clinical practices and the legal environment for firearm transfers.27
Current laws mandating a background check prior to the transfer of a firearm are designed to make it harder for high-risk people—including those with a disqualifying criminal history—to acquire a gun. Federal law prohibits a number of categories of persons from purchasing or possessing guns. These include felons, persons convicted of certain domestic violence misdemeanors, and persons involuntarily committed to a mental institution, among others. Some states have additional prohibited categories of persons, including those convicted of any violent misdemeanor.28
Under federal law, background checks to identify persons prohibited from owning firearms are required only for firearm purchases from licensed gun dealers. However, some states have so-called UBC laws mandating a background check whenever a gun is transferred, whether from a licensed dealer or a private party. Eight states require background checks at the point of sale, often conducted by federally licensed firearm dealers. As of July 2016, 10 states and the District of Columbia required prospective purchasers to acquire some type of permit prior to purchase or transfer (Table). These permitting processes also involve a background check. Broad state background check laws are important for gun violence prevention and have repeatedly been associated with reduced gun violence and crime.29- 33 For example, in 1995, Connecticut enacted a permit-to-purchase law requiring all prospective buyers to acquire a permit prior to purchasing a firearm. The permitting process includes a background check. Connecticut’s law was associated with decreases in firearm homicides and suicides.29,30 In 2007, Missouri repealed a similar law. This repeal was associated with increased numbers of homicides and suicides and diversion of firearms to criminals.31,32
Regardless of support or opposition to the concept of UBCs, these laws may have unintended consequences for suicide prevention efforts. In states with UBC laws, potentially suicidal gun owners may have difficulty even temporarily transferring guns to another person if they must follow the standard background check procedure. In contrast, the complete absence of a background check requirement might ease unwanted access to firearms by allowing persons who are prohibited from ownership, including those involuntarily committed, to obtain firearms, which could then elevate their risk of death by suicide.
State laws govern private intrastate gun sales and transfers. But state firearm laws vary tremendously. Some states subject all private sales to background checks.34,35 Other states do not require background checks for private sales; as long as a firearm is not knowingly transferred to a prohibited possessor, a private transfer is legal in these states.36,37 For example, in a state like Vermont with no law regarding acquisition of firearms from nondealers, there would be no obstacle to temporary transfer of the firearm out of the home to reduce suicide risk. In 32 states, temporary transfers (in fact, all private transfers) can proceed without a background check (Table).
In the other 18 states and the District of Columbia, however, options for reducing access to firearms through temporary, out-of-home storage may be limited. In many states with UBC laws, if the suicidal individual wants to remove a firearm from his or her home by temporarily transferring the firearm to a friend or family member, a background check of the friend or family member may be required. Moreover, a background check may be required of the individual who was suicidal when the gun is to be returned.
In some high-risk situations, a suicidal individual may be admitted to a psychiatric or other health care facility. Under federal law, an involuntary commitment that is more than a temporary psychiatric hold disqualifies an individual from gun ownership.38,39 However, most inpatient psychiatric or medical hospitalizations for suicidal thoughts or behaviors do not involve an administrative hearing regarding commitment and therefore do not qualify as involuntary commitments under the law.40 States have a variety of laws of this type, but are generally similar to the federal law. Therefore, in many states, persons receiving even inpatient psychiatric care, but who are not subject to an involuntary commitment, remain eligible to own a firearm.
Some states with UBC laws have regulatory schemes that ease the ability to legally transfer guns for protection of suicidal persons.
In Maryland, all handgun transfers are subject to a background check of the prospective purchaser. The transaction cannot occur until the background check has been processed by a designated law enforcement agency or a licensed dealer and forwarded to the secretary of the state police. For certain regulated firearms, including handguns, the transfer cannot occur until 7 days after the application is forwarded to the secretary.35 However, as used in the statute, the word “transfer” is not defined. It is not uncommon for operative terms to be undefined in firearm (or any) legislation, awaiting a legal challenge and judicial ruling.
In 2006, the Maryland Court of Appeals—the state’s highest court—held in Chow v State that the term transfer does not include temporary exchanges or loans between 2 adults.41 Under this ruling, despite Maryland’s background check requirement, suicidal individuals can temporarily transfer a firearm to a friend or family member without conducting a background check.
Unlike Maryland’s court-derived, nonstatutory exception, Colorado’s UBC exceptions are statutory. In Colorado, no background check is required if the transfer is a gift or loan between immediate family members or if the transfer is a temporary, 72-hour transfer.42 The statute provides a specific list of transfer-eligible family members: “spouses, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles.”42 The 72-hour transfer is relatively unrestricted, limited only by Colorado’s prohibited possessor provisions and by potential transferor liability. But the potential liability may be a substantial obstacle. Under that provision, the transferor “may be jointly or severally liable for damages proximately caused by the transferee’s subsequent unlawful use of the firearm.”42 Put another way, the 72-hour transfer can be to almost anyone, but if the recipient commits a crime, the firearm’s owner may be civilly liable for the associated damages. The exact logistics of these temporary transfers are also not apparent—for example, it is not clear from the statute what happens at the end of the initial 72-hour period and whether these periods can be repeated.
California has another approach to temporary transfers of firearms to reduce suicide risk. Although California has statutory exceptions to its UBC requirement for certain infrequent temporary transfers and loans, these transfers are still limited. The recipients must be immediate family members and must have a valid firearm safety certificate. The process for obtaining a firearm safety certificate does not involve a background check but does require safety training.43,44 This requirement is to ensure that firearms are transferred to responsible individuals, but it may act as an impediment for suicidal individuals seeking a quick temporary transfer.
In 2016, California implemented a gun violence restraining order law that may also be useful in emergency situations. This law allows law enforcement officials and immediate family members to request a gun violence restraining order from a state court. A court will issue such an order if it finds that there is reasonable cause to believe the subject will be a danger to self or others by owning or possessing a firearm and that less restrictive measures have not been effective.45,46 A gun violence restraining order law, however, applies to the involuntary removal of a firearm from the home rather than voluntary transfers. Our discussion and recommendations are limited to temporary voluntary transfers.
There are problems with each of these approaches. In Maryland, the temporary transfer allowed under the Chow case is vague and broad.41 The exact logistics of a temporary transfer are not described. In fact, the court did not define “temporary.” More importantly, the background-check-exempt temporary transfers can occur for any purpose, not just harm prevention, creating the potential for abuse by persons prohibited from owning firearms seeking a gun without a background check.
In Colorado, the 72-hour-transfer exception to the UBC law is similarly vague—it is not clear what happens at the end of the transfer period and how or if the transfer periods can be repeated. The period of elevated suicidal risk after a crisis can last weeks or longer, so a temporary transfer limited to 72 hours, with no opportunity to renew the temporary transfer, is likely to be insufficient.47 Specifying a substantially longer initial period, however, may be politically infeasible. In addition, the interval between the first occurrence of a thought of suicide and a suicide attempt is usually brief. One study found that for nearly half of attempts, the interval was 10 minutes or shorter, and approximately 80% of suicide attempts were within 1 week.48 In addition, among the 50 states, the maximum specified temporary transfer period is Delaware's 14-day limit.49 Further research is needed to determine the length of time for a firearms transfer that is most likely to help prevent death by suicide.
Experience with gun violence restraining orders in California is limited. Unlike immediate family members and law enforcement officials, extended family members, roommates, health care professionals, and friends are not able to directly request a gun violence restraining order. In addition, the law does not offer a solution to individuals who wish to transfer firearms themselves. Presumably, an individual experiencing suicidal ideation could call law enforcement and ask an officer to file a request for a gun violence restraining order. But suicidal individuals may not wish to become involved with the criminal justice system. Moreover, the law does not explicitly describe how an individual could initiate self-reporting in this manner.
Universal background checks before firearm purchase are effective public health measures, but should be supplemented with specific protocols for temporary transfer of firearms from the home and for storage. Protocols for temporary transfer may also help to reduce the risk of other forms of firearm violence, including intimate partner violence in situations where the firearm owner can be persuaded to voluntarily remove a firearm from the home.
States should consider incorporating and improving on aspects of Colorado’s temporary exemptions to background checks:
Include clear statutory provisions that allow for temporary storage by federally licensed firearm dealers, law enforcement officials, family members, and friends.
Incorporate Colorado’s temporary transfer provisions, but amend them to include the following:
Extension of the period of temporary transfer from 72 hours to at least 14 days or a longer period if recommended by a physician or other mental health professional;
Clarification that the temporary transfer provision does not affect existing laws forbidding knowing transfer of firearms to a person prohibited from possessing firearms;
Requirement that the person to whom a firearm is temporarily transferred store the firearm such that a child or other unauthorized user (other than the original owner) cannot gain easy access, similar to safe storage requirements already in effect in 18 states50; and
Inclusion of specific procedures for the end of the 14-day temporary transfer period, including the option to extend the period on the recommendation from a physician, another mental health professional, or a law enforcement official; the requirement for a recommendation to extend the period is designed to prevent a series of sham 14-day extensions with the intent of circumventing the background check requirement.
Limit the liability related to these temporary transfers to instances of gross negligence or reckless behavior by the person who transfers the firearm.
Efforts to educate physicians and the public should carefully explain these provisions to allay fears about potential liability associated with the temporary transfer of firearms from the home and to encourage transfers for suicide prevention. Public health professionals and firearm organizations should collaborate to develop tailored and effective messaging that is acceptable to physicians, mental health professionals, and the public. Policy changes should also be evaluated to assess whether they have the intended effect of reducing firearm suicides.
Corresponding Author: Jon S. Vernick, JD, MPH, Johns Hopkins Center for Gun Policy and Research, Johns Hopkins Bloomberg School of Public Health, 624 N Broadway, Hampton House 594, Baltimore, MD 21205 (firstname.lastname@example.org).
Accepted for Publication: August 2, 2016.
Published Online: November 14, 2016. doi:10.1001/jamainternmed.2016.5704
Author Contributions: Prof Vernick had full access to all the data in the study and takes responsibility for the integrity of the data and the accuracy of the data analysis.
Study concept and design: All Authors.
Acquisition, analysis, or interpretation of data: McCourt, Vernick, Brandspigel.
Drafting of the manuscript: McCourt, Vernick, Betz, Runyan.
Critical revision of the manuscript for important intellectual content: All Authors.
Administrative, technical, or material support: Brandspigel.
Study supervision: Vernick.
Conflict of Interest Disclosures: None reported.
Funding/Support: Support for Mr McCourt and Prof Vernick was provided, in part, by a grant from the Bloomberg Philanthropies to the Johns Hopkins Center for Gun Policy and Research. Support for Dr Betz, Ms Brandspigel, and Dr Runyan was provided, in part, by grant number 1R21MH105827 from the NIMH.
Role of the Funder/Sponsor: The funding organizations played no role in design and conduct of the study; collection, management, analysis, and interpretation of the data; and preparation, review, or approval of the manuscript; and decision to submit the manuscript for publication.
Additional Contributions: We also acknowledge the work of our colleagues on this NIMH project, who received no compensation for their efforts but whose ideas contributed to the genesis of this article: Ashley Brooks-Russell, PhD, MPH, Colorado School of Public Health; Douglas Novins, MD, University of Colorado School of Medicine; and Gregory Tung, PhD, MPH, Colorado School of Public Health. Finally, Dr Runyan generated the idea for the work as companion to a National Institute of Mental Health (NIMH) study for which he is principal investigator.